Faisal Naseem Chaudhry [advocate, Lahore High Court; Lahore, Pakistan]: "The Dubai deliberations are over. In a Friday press conference, Mian Nawaz Sharif (MNS) announced that a Resolution restoring Pakistan's ousted judges shall be tabled before the National Assembly on May 12; shall be passed by a simple majority of the House and the executive authority (Prime Minister) shall honour the resolution by passing an Executive Order reinstating the Nov 3 deposed judges. MNS also mentioned the establishment of a committee that will finalize the modalities of restoration including, but not limited to, the language of the Draft Resolution.

Shortly after the above-noted press conference as of May 01, Pakistan People's Party leader Asif Ali Zardari (AAZ) clarified that yet a 'formula' is required for the restoration and the 'committee' shall decide the fate of the deposed judges.

AAZ's Federal Law Minister Mr. Farooq Naik further clarified that the 'committee' has been given an assignment which can only be accomplished with consensus. In case of divergent views, even the slightest, the matter shall again be forwarded to the leadership of both the main political parties, i.e. AAZ and MNS. Most importantly, Mr. Naik said 'yes' to the possibility that restoration may not take place on 12 May if the committee fails in its deliberations and consensus.

MNS categorically stated that the Resolution shall not be directly linked with any Constitutional Package; yet Mr. Naik rebutted the same, reiterating that both shall be tabled on the same day. He said 'the same day'; he did not say 'on 12 May'.

MNS in his press conference accepted the continuity of PCO judges in the Supreme as well as all the 04 High Courts. On Saturday the Pakistan Bar Council in its afternoon Resolution restated that the lawyers' fraternity shall not accept the PCO judges. It further stated that in case nothing happens on 12 May, a convention of Pakistan Bar shall be convened on 16 May.

All this makes one wonder if in fact the deposed judges will be restored May 12. I fear not, for the following reasons:

Notwithstanding whether Chief Justice Chaudhry's position is made tenure-based, both the political parties had divergent views vis-à-vis the modalities of restoration. The very first difference of opinion was that MNS preferred a Simple Majority Resolution whereas AAZ had been advocating a Constitutional Amendment through a Composite Constitutional Package. The difference between the two is obvious:

a. A Simple Majority Resolution is not of a binding nature; rather, under the rules and procedures of the National Assembly, it is regarded as a request to the Executive which alone is competent to decide how to honour it i.e. either through an Executive Order or by an Act of Parliament. The Executive can also put the matter in limbo. Our constitutional history is replete with such examples of 'Simple Majority Resolutions' which have never been acted upon.

b. A constitutional Amendment passed by a two-thirds majority of both houses of parliament (the National Assembly & the Senate) is not only of a binding nature, but it also amends the constitution. The parliament is the supreme legislative body and it can make any law whatsoever not in conflict with humanity, decency, federation of Pakistan (it can not make Pakistan a Confederation), and the independence of judiciary etc.

c. MNS is of the view that if you bring a constitutional amendment for the restoration of the deposed judges, that would mean you accept not only the Nov 3 PCO but also subsequent extra-constitutional alterations in the Constitution incorporated by President Musharraf.

d. But MNS does not realize that a Supreme Court headed by current PCO Chief Justice Abdul Hameed Dogar cannot issue an injunction preventing parliament from amending the constitution. The same court can, however, issue an injunction preventing the Executive Authority from honouring a Simple Majority Resolution. An Executive headed by a PPP's Prime Minster is not likely to disobey Justice Dogar. What will happen in this case? A few demonstrations, another few rallies, some tele-programmes. The clock will continue ticking.

AAZ has played this situation smartly, cleverly, and rather cunningly. By having the dialogues at Dubai, he has successfully avoided public as well as lawyers' pressure. If the dialogues had been conducted even in the remotest part of Pakistan, there would had been crowds standing out on the road and some lawyers too, holding black flags. AAZ may have some real 'family engagements' in Dubai but equally surprising is the fact that he was back to Pakistan on May 02.

AAZ has also undermined the PML(N) while inducing them to accept Federal Ministries on the sole condition that judiciary shall be restored to Nov 3 position. Once they accepted the portfolios literally half-heartedly, AAZ was saying on 29 April, "Muree Declaration was a political statement'.

I have every good reason to wonder how AAZ will live with Chief Justice Chaudhry even till June 2010 once AAZ has openly spoken against him with BBC's correspondent. You may curtail his powers even by a constitutional amendment, yet a man occupying such a powerful seat can be dangerous for AAZ. This is Pakistan, where you will find conflicting judgements on every proposition of law and I will not be surprised if a petition challenging the curtailment of administrative powers is filed before Chief Justice Chaudhry. He will issue notice and may suspend the amendment. Again what will happen? The Executive will have to contest the petition even if the injunctive order was wrong and during the entire cushion period, Chief Justice Chaudhry will continue exercising his previously taken-away administrative powers. Will such a possibility be acceptable to AAZ?

Our constitution is silent on the number of judges to be present in the Supreme Court. The 1997 Judges Act requires the Supreme Court not to exceed 17 judges, including the Chief Justice. On Nov 3, 13 were deposed. Justice Bhagwandas retired at the age of 65 leaving behind 12. The present Supreme Court is composed of 16 PCO judges including Justice Dogar. Adding another 12 will make it the largest Supreme Court in this world. But most importantly, even if an Executive Order is passed on the evening of 12 May, how can these 28 work together once the 1997 Judges Act does not allow more than 17 judges. Hence, technically speaking, before an Executive Order is passed, an amendment shall be required to modify the 1997 Judges Act. A bill shall be required by simple majority requiring assent of the President, to make the Bill an Act of Parliament thereby raising the upper limit to 28 judges. Can all this exercise take place on the afternoon of 12 May?

Following the statement of Mr. Naik, the Federal Law Minster, that the Resolution and Constitutional Amendment shall be tabled on the same day, again all this exercise cannot for all practical reasons take place on the same day. If the instruments are not tabled the same day, I am 100% sure the judges shall not be restored. The reason why is simple. AAZ will not accept an all-powerful Chief Justice Chaudhry.

One should not forget which type of working relationship there will be among the deposed and the PCO judges. One shall not be surprised if there are little altercations between the two groups reported in press.

If PCO judges continue as even accepted by MNS, the lawyers' community shall protest. The Pakistan Bar Council is not that concerned about the PCO judges who took oaths on the evening of Nov 3. Eyebrows are raised in respect of those subsequent appointments where the 'consultation' for this purpose took place between Justice Dogar and President Musharraf. The lawyers regard Justice Dogar as an illegal de facto Chief Justice of Pakistan and hold the view that the mandatory 'consultation' as required by the constitution was erroneous. Hence, all the subsequent appointments to the Supreme Court and the Provincial High Courts are void.

President Musharraf's reaction cannot be ignored. Friday, two news items caught my attention. Firstly that he would not oppose the reinstatement; secondly that he is ready to live without Article 58(2)(b) of the Constitution (giving him draconian powers to dissolve the National Assembly and the Government).

I believe the first was incorrect. If President Musharraf asks AAZ not to reinstate the deposed judges and in return AAZ make take away the above mentioned draconian powers ensuring 05 years uninterrupted rule to AAZ, what would be his reaction? AAZ would accept the proposal. For President Musharraf, the reinstatement of deposed judges is more than a nightmare. He was scared of and uncomfortable with one Iftikhar Chaudhry; now there are 60 of him. So, the Presidency will not keep silent on reinstatement particularly when Justice Dogar would also not like to remain indolent on 12 May and thereafter. For the last 6 months, he has been enjoying the trappings of a Chief Justice. If he has decided to live with those trappings, he can offer anything to AAZ. Two attractive proposals from two pillars of state. AAZ cannot ask for more.

Six months have passed since Nov 3 and every passing day had been adding more complexities to this already so tricky situation. So much is up for discussion; a de facto Supreme Court, a de jure Supreme Court, a de facto Chief Justice, a de jure Chief Justice, an injunction against the Executive Order, the legality of an Executive Order, the non-binding nature of a Simple Majority Resolution, the total number of judges in the Supreme Court, the fate of Justice Dogar's judgment legalizing the Nov 3 PCO and so on and so forth.

I sincerely hope my assessment proves wrong and that the deposed judges shall be restored on 12 May. The fate of Chief Justice Chaudhry is also unclear. It does not matter what MNS says. What matters are the words coming from the mouth of AAZ."